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The Technological Obsolescence of the Law

Whether to subvert it, to reform it or to defend it, political struggle revolves around the institution of the law. Even those who wish to abolish the current laws, aim to replace them with other, possibly better systems of laws. Nowadays, only the most radical anarchists still oppose the universal belief in the necessity of having laws to regulate social life.

Such a pervasive belief makes us see laws everywhere, including in fields that don't belong to the realm of social life. When we consider the natural world, for example, we refer to the physical regularities at play between substances and organisms in terms of “the laws of nature”. We project onto the natural world our own mode of social organisation, as if it was not only inevitable for us, but it also applied to the totality of what exists – as if even clouds and orbits we somehow subject to some sort of legal institution.

The law appears to our common sense as a feature of reality itself. Consequently, any human community, however liberal it wishes be, necessitates the institution of the law to remain in harmony with the very structure of reality. It is just an inevitable fact that human communities should grow around the skeleton provided by legal institutions.

And yet, if we look more closely, the institution of the law has very little, if anything, that is “natural”. There is nothing legalistic in the way objects follow the pull of gravity or move according to a certain scale of accelerations. It is not that natural phenomena have a chaotic tendency. The problem, rather, is that the regularity of their physical behaviours is not disciplined by that mechanism of judgement, sentence and punishment that always accompanies a “law”. Whatever might be the reason that makes an atom behave in a certain way, it has nothing in common with the process of behavioural orthopaedics that legal systems enforce on humans.

When we speak of the law, as a general institution, we speak of a uniquely human invention. Like other linguistic inventions, such as myths or rituals, the law is a technology whose function is to produce particular sets of results. Its invention can be dated around the same time as the invention of the technology of writing, in the 4th millennium BC – at least, this is what we can say based on the oldest surviving written records found among the ruins of ancient Mesopotamia.

At its onset, the technology of the law emerged in a society where the secular and the religious powers where hardly distinguishable. As held by the priestly caste, the massive body of secular/divine knowledge was a complex edifice, with different points of access and different levels of meaning. At its lowest level, it presented itself in the form of a clear discourse, addressed directly to the people and concerned with basic practical advice. These recommendations eventually developed into sets of ethical injunctions, supported by punishment for transgressors – and they took the form of the law, as we still understand it today. At its higher level, however, ancient knowledge shed its clear and “legalistic” tone, to become a cloudy and at times ineffable narrative. It took what in ancient Egypt became the “hieroglyphic”, or sacred, form of knowledge.

This notion of knowledge as a two-levels edifice, one clear and exoteric and the other ineffably esoteric, is also part of the essential structure of mythology. Like the earliest written laws, also the mythical discourse contained a clear, exoteric level, and a higher, nebulous, and esoteric dimension. At the exoteric level, the myth warned us to be careful with certain actions, such as defying the gods or overstepping one’s own limitations. More esoterically, however, it presented us with a scenario in which these simple rules for living were entirely powerless against the absurd diktats of fate. At this higher level, the most ancient myths already embodied the form of the tragedy, where humans are suddenly confronted by the vacuity of all their notions and the fragility of all their plans.

Thus, at its origin, the law was considered as a technology of language with a limited scope, to be kept in the same toolkit as other technologies such as myths or rituals. Like them, the point of the discourse of the law did not consist in what it said, but in what it “did” or made happened. The words of rituals effectively ensured that the gods were appeased, and that the heavens kept turning. The words of the myth, when properly understood, could transform the self-perception and even the character of their listeners. And the words of the law, for their part, produced a modification in the behaviours of those who received them.

Over the millennia, myth, ritual and law – these three technologies born of an ancient theocratic society – encountered different destinies.

With the advent of Modernity, ritual lost its grip on the otherworldly realm, whose very existence was rejected as a fantasy. In its modern form, ritual turned into a set of empty performances – variously employed to reaffirm one’s own belonging, to strengthen political propaganda, or to engage in private attempts at self-help.

Around the same time, mythology suffered banishment from the number of legitimate sciences. Like ritual, it was mostly demoted to the realm of political or commercial propaganda.

Both ritual and myth were seen as outdated linguistic technologies, and as such they were reduced to small, folkloric parodies of themselves. This is the form in which they still survive today.

Unlike them, the third of the ancient Mesopotamian siblings, the institution of the law, has remained fundamentally unchallenged since its invention. Its content has repeatedly changed, of course, yet, to this date, there is little if any questioning its status as a necessary technology for a decent social life.

Such monolithic stability, however, applies only to the secular realm. In the field of religion, on the contrary, the technology of the law has experienced a very different destiny. Already in antiquity, religious believers found it unfit and ineffective to organise human behaviours vis a vis the Divine. In the eye of the mystics, for example, the laws issued by the religious institutions were never endowed with any special status or immutable stability. Even the divinely revealed law was, for the mystic, nothing more than an early aid to the religious explorer, which must be overcome if one is to ever achieve a full understanding of reality and of its mysteries. For Muslilm Malamatiyya Sufi, as for Taoist sages, or for the many “fools of God” of medieval Christian mysticism, the law was a deficient technology, which should be discarded without too much sentimentalism – and possibly with a hint of irony.

It is only in the secular realm that human communities have not yet found it desirable, or perhaps possible, to overcome the technology of the law as the chief regulator of behaviours. Instead, together with the law, they developed the rest of the production chain that surrounds and reinforces it. Prisons, police stations, courts and legislative bodies have grown to the point of their contemporary hypertrophy, thus inscribing ever more deeply within the social body the law's power to regulate behaviours through a combination of deliberation, sentence and punishment.

This long attachment to the institution of the law, however, is at odds with its nature as a technology. Like all technologies, its legitimacy is limited to its efficacy, and it should never be spared the threat of obsolesce that comes with new research and developments. In its immutability, the secular form of the law seems to have denied its essence as a technology, relocating instead in the most conservative religious sphere, where dogmas reign supreme.

In history, however, no place is safe. And recently there have been attempts at overcoming the law. Not surprisingly, these have come from other fields of technological developments.

In the realm of algorithms, the dynamics of human/machine interaction are regulated by systems that can hardly be definable as “legal”. Unlike laws, they are not public, but hidden. In their secrecy, they resemble more closely those hidden harmonies that regulate the physical interactions of substances and organisms in the natural world.

Through the algorithms, at long last, an attempt is being made to think beyond the technology of the law, and to envisage a new system beyond its long reign.

Whether such algorithmic overcoming of the law is a desirable event, it remains entirely for us to decide. If we were we to find it undesirable, however, we should be wary of falling for any undue nostalgia for a technology, the law, which has been responsible for unspeakable suffering and injustices throughout history. Rather than fighting a backwards battle in defence of the law, we would better begin to ask ourselves what other kind of linguistic technologies might be suited to regulate the interactions between humans, and how we could present them as viable alternatives both to the regime of the law and to the incoming reign of the algorithm.

Embarking on this quest for a new technology of language would take us on the path towards epoch-defining innovations. And the very radicality of this quest seems to suggest that its lead should be taken, not by professional technologists or by political analysts, but by poets, mystics and mythographers. Those who are familiar with lost technologies of language, like myth and poetry, and with lost ideas of reality, precisely because of their kinship with what does not belong to the now of this world, might be better able to envisage a radical alternative to what appears today as an inevitable feature of reality.

Which alternatives they will end up imagining and what new technologies they will be able to design, I cannot yet say. The few poets, mystics and mythographers that still survive today will have to face very powerful adversaries among the defenders of the law and the partisans of the algorithms. They might fail, and their efforts might be for nothing. All the same, their quest for a new technology will take them to the workshop where a new future is being built, which will outlast many futures to come.


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